Warsaw, Poland – A border can be understood in many ways: an abstract line with no factual representation in life, as well as a very real and physical separation between two nation-states, not only loaded with social meaning but whose very purpose is to divide between an “us” and a “them” and separate ideas, values and principles. In other words, meant to reinforce our sense of identity in opposition to whatever (and whoever) lies beyond.
When a divisive shared memory is at stake, fueled with competing national narratives of history, borders can turn into deadly theaters of tragic events.
The dramatic situation currently unfolding at the Polish-Belarusian border serves to highlight the uncertain fate of those stuck in limbo between lines of Polish guards and Belarusian soldiers.
Poland-Belarus relations hit rock-bottom
Managing the Polish-Belarusian border, itself set against the backdrop of a shared cultural and historical memory, has never been an easy task. Minsk currently perceives Warsaw as an existential threat, with President Lukashenko regularly promoting an anti-Polish narrative to legitimate some of its most recent actions. On September 17, Belarus declared a new national holiday on the anniversary of the Soviet invasion of Poland and subsequent occupation as envisioned by the secret pact signed with Nazi Germany.
During the Day of National Unity, Lukashenko openly declared in his speech to the nation that Bialystok (in Poland) and Vilnius (Lithuania) are Belarusian territories. To reinforce its bitter anti-Poland rhetoric, he focused on the cruelty committed when Western Belarus was under Polish control from 1921 to 1939.
Relations between Poland and Belarus have hit rock bottom in the past year, fueled by the highly contested reelection of Alexander Lukashenko at the helm of the Eastern European nation, and his crackdown on protesters and dissidents. Warsaw, in turn, spearheaded EU efforts to impose sanctions on Minsk, and offered refuge to a number of Belarusian dissidents fleeing persecution.
The current crisis at the border is seen by Poland – supported by the EU in that matter – as Lukashenko’s hybrid warfare answer, pushing waves of migrants towards its western neighbour to create unrest and sow division. While most agree that Belarus is the one to blame for triggering the crisis, the current impasse at the border is nonetheless a combination of a controversial past and of Poland’s conservative – to some extent hostile – stance towards the integration of asylum seekers.
The Polish government has been widely criticized in Brussels for its repeated breaches of international migratory law and EU regulations governing refugee status. And a weak EU regulatory framework and overall incapacity from member states to agree on a common asylum policy appear to have only facilitated the Polish hardline towards refugees.
A legal framework for asylum protection
Evidence shows that the repeated pushbacks contravene the Geneva convention and EU regulations to provide safe access to asylum seekers wishing to apply within EU borders.
As the Polish Human Rights Ombudsman pointed out, Poland’s Border Guard breached the Geneva Convention the minute they disregarded verbal declarations from some of the migrants that they did want to apply for asylum in Poland. This action amount to an immediate breach of article 3 on non-discrimination as to race, religion and country of origin. As noted by experts, Polish Guards have also violated the right for refugees to access the courts (article 16) and the right to freedom of movement within the territory (article 26).
As far as EU law is concerned, the Dublin Regulation determines which country is responsible for examining an asylum application – usually the country where the asylum seeker first entered the bloc. In this regard, Poland is not fully implementing the regulation as the country admittedly fails to assess asylum cases, included those situated at non-official border crossings.
A lot of the current legal chaos, however, hails from the limitations of the EU’s own approach on the management of international migration. The EU has oriented its policies mainly towards limited categories of legal migrants, and overall lacks competencies in this area, which mainly befalls on EU member states who, in turn, have developed highly distinct policies on migration and the treatment of asylum seekers.
Pushbacks under scrutiny
The Polish Constitution as well entitles asylum seekers to apply for international protection in Poland. The process envisages that an application for international protection must be submitted to the Border Guard, passing it on to the Head of the Office for Foreigners.
Applicants are then required to inform a Border Guard officer and clearly state they want to apply for international protection using, for instance, the international term “asylum”. Polish pushbacks – which have already resulted in at least five deaths among migrants this month – also appear contrary to article 3 of the European Convention on Human Rights which states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
This is not an isolated case; the current pushbacks at the border are reminiscent of a similar case in 2020 known as M.K. and Others v Poland. The affair involved the repeated refusals of Polish border authorities to permit persons in need of asylum to apply for international protection, and concerned applications submitted by Russian nationals, including children, who sought to cross the Terespol border between Poland and Belarus.
The applicants fleeing Chechnya claimed they feared for their safety and wished to apply for international protection. However, Polish border authorities engaged in repeated pushbacks, claiming that they had not clearly stated that they risked persecution in their homeland.
A matter of life and death
As reported by the UN migration agency and numerous human rights groups, migrants stuck at the border are subject to extremely harsh conditions. The bodies of four dead migrants were found earlier this month at different locations, with many fearing the death toll can only increase in the coming weeks.
One week ago, Polish guards reported the death of another Iraqi man believed to have suffered a heart attack due to falling temperatures. The lack of food, water and medical care has prompted the European Court of Human Rights to apply interim measures for Poland and Latvia to provide necessary emergency support.
Warsaw, for its part, continues to deny entry to most migrants arriving at the border, blaming Belarus for pushing them with the false hope of legal entrance while saying it is ready to provide humanitarian assistance to those in need. A state of emergency has been declared at the border regions, which many claim is excessive and disproportionate and leads, among other consequences, to journalists and activists unable to properly report on the situation at the border.
Interestingly, unlike Lithuania and Latvia, Poland is firmly refusing any intervention from Frontex. The Polish government declares that it can take care of the problem itself without external aid. Relying on Frontex would prevent the Polish government from boosting its narrative that it needs neither outside help nor any other type of interference when it comes to the security of its borders.
While the Polish government frames the issue as a matter of life and death to protect domestic and EU external borders, the crisis is quickly becoming an actual matter of life and deaths for hundreds of migrants.
By Francesco Miano
Francesco is a junior data analyst at Accenture in Warsaw and has recently graduated from the College of Europe, obtaining an advanced MA degree in European Interdisciplinary Studies. He also holds a double master’s degree in European Studies and Political Science from Jagiellonian University and Kobe University. He cultivates an interest in policy analysis and journalism, contributing to themes of migratory issues in Central and Eastern Europe, labour economics in the EU, and EU-Japan relations.